[Cite as State v. Deemer,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellant Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 2015 AP 01 0006 JESSICA DEEMER

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Common Pleas Court, Case No. 2014CR090190

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 7, 2015

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

MICHAEL J. ERNEST MARK A. PERLAKY Assistant Prosecuting Attorney Tuscarawas County Public Defender 125 E. High Avenue 153 N. Broadway St. New Philadelphia, Ohio 44663 New Philadelphia Ohio 44663 Tuscarawas County, Case No. 2015 AP 01 0006 2

Hoffman, P. J.

{¶1} Plaintiff-appellant the state of Ohio appeals the January 21, 2015

Judgment Entry entered by the Tuscarawas County Court of Common Pleas granting

Defendant-Appellee Jessica Deemer's motion to suppress evidence.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 8, 2014, Appellee was operating a motor vehicle in the City of

New Philadelphia, Ohio. Officer James Miller of the New Philadelphia Police

Department observed the vehicle travel across the double yellow lines of the roadway

with all four tires, a traffic violation, and initiated a stop. Upon approaching the vehicle,

Officer Miller noticed Appellee appeared nervous, had shaky hands and constricted

pupils. He then requested Appellee's personal identification, and went back to his

cruiser to issue a citation and check for outstanding warrants. Officer Miller knew the

vehicle had come from a known heroin house, and believed from his training and

experience Appellee had indicators she was under the influence of narcotics.

{¶3} Sergeant Eddie Jones of the Tuscarawas County Sheriff's Office and

Officer Mitch Gobely of the New Philadelphia Police Department then arrived at the

scene as backup.

{¶4} Officer Gobely approached the driver's side window of the vehicle as

Officer Miller prepared the traffic citation. His purpose in approaching Appellee was to

obtain consent to search the vehicle for narcotics. He asked Appellee for consent to

search the vehicle. Appellee responded it was not her vehicle, and looked to her

passenger for guidance. She stated, "It's not my vehicle. I'm not sure I can do that."

The passenger, Jason Carothers, responded, "There is nothing in here. You can go Tuscarawas County, Case No. 2015 AP 01 0006 3

ahead and search it." Appellee stated, "Yeah, that's fine. Go ahead and search the

vehicle."

{¶5} Officer Gobely testified Appellee appeared nervous, and was apparently

"more nervous than a driver in a normal traffic stop." He testified he believed she was

not nervous about giving consent to search; rather, only hesitated because it was not

her vehicle, at which point he explained to her she had the authority to make the

decision as to whether to grant consent to search. Upon obtaining her consent to

search, Officer Gobely asked Appellee and Carothers to exit the vehicle.

{¶6} Appellee was asked if she had anything in her pockets, and then asked to

step to the rear of the vehicle. Officer Gobely testified Officer Miller and Sheriff Deputy

Eddy Jones were on the scene. Captain Stewart of the New Philadelphia Police

Department also arrived at the scene shortly after Gobely and Jones arrived. At the

time of Appellee's initial "consent" given in the vehicle, there were four police cruisers

on the scene with flashing lights.

{¶7} Officer Miller stepped out of his cruiser and engaged Appellee in a

conversation near the rear of the vehicle. DVD video of the stop obtained from Officer

Miller's police cruiser provides audio testimony of Officer Miller engaging Appellee and

Carothers at the driver's side door, but goes silent when Officer Miller returns to his

cruiser approximately at 4:20 (four minutes and twenty seconds) into the video. DVD

Audio testimony of Appellee consenting to the search is unavailable.

{¶8} At 8:35 (eight minutes and thirty-five seconds) into the video, the audio

returns and Officer Miller is heard engaging Appellee in a conversation and making

statements to the effect, "if you happened to go to jail tonight, if you had anything on Tuscarawas County, Case No. 2015 AP 01 0006 4

your person, it would be a felony…" Officer Miller testified to making statements to this

effect. Appellee then consented to the search. On the video, four officers are seen

surrounding Appellee at the time Officer Miller is talking to her with shining flashlights.

{¶9} After Appellee's consent given to Officer Miller, Officer Miller walked up to

the driver's side of the vehicle and observed a purse on the driver's seat. Inside the

purse, the officer found a syringe. The entire encounter lasted approximately 13

minutes prior to Appellee's arrest.

{¶10} On November 19, 2014, the Tuscarawas County Grand Jury indicted

Appellee on one count of possessing drug abuse instruments, in violation of R.C.

2925.12(A), a misdemeanor of the second degree.

{¶11} Appellee filed a motion to suppress asserting the officer did not have

reasonable suspicion to search her vehicle and she did not voluntarily consent to the

search. The trial court conducted a hearing on the motion on December 12, 2014, and

December 22, 2014. Via Judgment Entry entered January 21, 2015, the trial court

granted Appellee's motion to suppress.

{¶12} The State now appeals, assigning as error:

{¶13} "I. THE TRIAL COURT ERRED IN CONCLUDING THAT THE

APPELLANT FAILED TO PROVE THAT THE APPELLEE GAVE A VALID CONSENT

TO SEARCH."

I.

{¶14} In State v. Goffee,

,

, this Court held

there are three ways to challenge a trial court's ruling on a motion to suppress, Tuscarawas County, Case No. 2015 AP 01 0006 5

There are three methods of challenging on appeal a trial court's

ruling on a motion to suppress. First, an appellant may challenge the trial

court's findings of fact. In reviewing a challenge of this nature, an appellate

court must determine whether the findings of fact are against the manifest

weight of the evidence. State v. Fanning (1982),

, 1 OBR

57,

; State v. Klein (1991),

,

; State v. Guysinger (1993),

,

. Second, an appellant may argue that the trial court failed to apply the

appropriate test or correct law to the findings of fact. In that case, an

appellate court can reverse the judgment of the trial court for committing

an error of law. State v. Williams (1993),

,

. Finally, assuming that the trial court's findings of fact are not against

the manifest weight of the evidence and that it has properly identified the

law to be applied, an appellant may argue that the trial court has

incorrectly decided the ultimate or final issue raised in the motion to

suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion,

whether the facts meet the appropriate legal standard in any given case.

State v. Curry (1994),

,

; State v.

Claytor (1993),

,

; Guysinger. As the

United States Supreme Court held in Ornelas v. United States (1996),

,

,

, “as a general matter Tuscarawas County, Case No. 2015 AP 01 0006 6

determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

{¶15} Consent to search is well-established exception to the warrant

requirement. No Fourth Amendment violation occurs when an individual voluntarily

consents to a search. United States v. Drayton,

,

.

The proper test is whether the totality of the circumstances demonstrates the consent

was voluntary. State v. Robinette,

,

.

{¶16} In Robinette, the Ohio Supreme Court held,

We find Bustamonte instructive in defining when permission to

search is truly consensual under the totality of the circumstances:

“[W]hen the subject of a search is not in custody and the State

attempts to justify a search on the basis of his consent, the Fourth and

Fourteenth Amendments require that it demonstrate that the consent was

in fact voluntarily given, and not the result of duress or coercion, express

or implied. Voluntariness is a question of fact to be determined from all the

circumstances, and while the subject's knowledge of a right to refuse is a

factor to be taken into account, the prosecution is not required to

demonstrate such knowledge as a prerequisite to establishing a voluntary

consent.”

412 U.S. at 248–249, 93 S.Ct. at 2059, 36 L.Ed.2d at 875.

State v. Robinette,

,

,

, 769

{¶17} In State v. Camp, Richland App. No. 14 CA 42,

, this Court

held, Tuscarawas County, Case No. 2015 AP 01 0006 7

One well-established exception to the warrant requirement is the

consent search. No Fourth Amendment violation occurs when an

individual voluntarily consents to a search. See United States v. Drayton,

,

,

(2002) (stating that

“[p]olice officers act in full accord with the law when they ask citizens for

consent”); Schneckloth v. Bustamonte,

,

,

(1973) (“[A] search conducted pursuant to a valid consent

is constitutionally permissible”); State v. Comen,

,

(1990). In Schneckloth, the United States Supreme Court

acknowledged the importance of consent searches in police

investigations, noting that “a valid consent may be the only means of

obtaining important and reliable evidence” to apprehend a criminal.

at

227–228,

. See, also, State v. Fry, 4th Dist. No. 03CA26,

,

, ¶ 18.

The United States Supreme Court further noted, “[w]hile most

citizens will respond to a police request, the fact that people do so, and do

so without being told they are free not to respond, hardly eliminates the

consensual nature of the response.” I.N.S. v. Delgado,

,

,

(1984);

,

. Moreover, a voluntary consent need not amount to a

waiver; consent can be voluntary without being an “intentional

relinquishment or abandonment of a known right or privilege.” Schneckloth

v. Bustamonte,

,

,

(1973), Tuscarawas County, Case No. 2015 AP 01 0006 8

(quoting Johnson v. Zerbst,

,

,

(1938)); State v. Barnes,

,

(1986);

State v. McConnell, 5th Dist.Stark No. 2002CA00048,

,

, ¶ 8. Rather, the proper test is whether the totality of

the circumstances demonstrates that the consent was voluntary.

Further, “[v]oluntary consent, determined under the totality of the

circumstances, may validate an otherwise illegal detention and search.”

State v. Robinette,

,

(1997), citing

Davis v. United States,

, 593–594,

,

(1946). The voluntariness of a consent to a search is a question of

fact and will not be reversed on appeal unless clearly erroneous. State v.

Clelland,

,

(4th Dist. 1992). (Emphasis

not in original opinion but added for purpose of emphasis in this opinion).

{¶18} As set forth in the Statement of the Facts and the Case, supra, Officer

Gobely asked Appellee for consent to search the vehicle while Appellee remained in the

vehicle with Carothers. Appellee was hesitant and looked to Carothers. Officer Gobely

testified Appellee appeared nervous, and was more nervous than an average traffic

stop.

{¶19} Appellee then exited the vehicle, and stepped to the rear of the vehicle.

Officer Miller then engaged Appellee in a conversation. Officer Miller told Appellee,

while she was surrounded by three officers, with a total of four officers present and the

scene illuminated by the headlights and stop lights of four police cruisers, "if she

happened to go to jail tonight, and anything was found on her person, it would be a Tuscarawas County, Case No. 2015 AP 01 0006 9

felony." Thus, Officer Miller implied Appellee might be taken to jail that night. Appellee

then consented to the search, and Officer Miller began the search at that point.

{¶20} At the suppression hearing, Officer Miller testified:

THE WITNESS: When I began talking with her there I went up and I

asked him [sic] again if there was anything illegal in her purse and in her

vehicle or anything we needed to know about and then I also advised her

that if she did have anything on her person and for some reason she

would go back to jail tonight she could end up getting a higher charge, so

if she has anything on her person it's better to give it up before going back

to jail if for some reason she would go back to jail. And then I asked her if

she'd mind if we looked in the vehicle or looked in her stuff and she said

no.

THE COURT: Okay. That's what I did not hear you say. But you're

telling me that that's what you said immediately before you went up to the

driver's side.

THE WITNESS: That's what I said to her, yeah.

THE COURT: Okay.

{¶21} Tr. at 39-40.

{¶22} On cross-examination, Miller testified:

Q. Okay. So I guess my next question is when you're asking for her

consent why was it necessary to advise her of the possibility of felony 3

illegal conveyance charge? Tuscarawas County, Case No. 2015 AP 01 0006 10

A. I like to tell them that because if we find something and they end

up going back to the jail and they have it tucked on them which normally

they do tuck stuff on them in their person, especially females because

we're not going to intrude upon a female's pockets or inside of her, you

know, bra area or anything like that. So, I like to advise them beforehand

if something does happen that, you know what I mean, it's best to give it

up now because she's going to get lesser charges than she would if she

were to go back to jail if she got something.

Q. Officer Miller, couldn't that wait until you find something though?

A. It could.

{¶23} Tr. at 59.

{¶24} Based upon the totality of the circumstances, we do not find the trial

court's determination Appellee's consent was not freely [voluntarily] given was clearly

erroneous. Tuscarawas County, Case No. 2015 AP 01 0006 11

{¶25} The judgment of the Tuscarawas County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur